On appeal, defendant challenges the imposition of consecutive commitment
terms. The state responds that we sustained the imposition of consecutive PSRB
commitments under a previous version of ORS 161.327 and that subsequent changes in
that statute were not intended to alter a court's authority in that regard. In response to
defendant's alternative argument, the state argues that, even if findings paralleling those
under ORS 137.123 are necessary to support the imposition of consecutive terms of
commitment, a remand is unnecessary because, on this record, we can determine as a
matter of law that consecutive commitment terms were required.

We first consider when, if ever, consecutive PSRB commitment terms can
be imposed when a defendant is found to be guilty except for insanity. ORS 161.295(1)
provides:

"A person is guilty except for insanity if, as a result of mental disease
or defect at the time of engaging in criminal conduct, the person lacks
substantial capacity either to appreciate the criminality of the conduct or to
conform the conduct to the requirements of law."

Finally, ORS 161.327(1), which lies at the heart of the parties' dispute,
states:

"Following the entry of a judgment pursuant to ORS 161.319 and the
dispositional determination under ORS 161.325, if the court finds that the
person would have been guilty of a felony, or of a misdemeanor during a
criminal episode in the course of which the person caused physical injury or
risk of physical injury to another, and if the court finds by a preponderance
of the evidence that the person is affected by mental disease or defect and
presents a substantial danger to others requiring commitment to a state
mental hospital designated by the Department of Human Services or
conditional release, the court shall order the person placed under the
jurisdiction of the Psychiatric Security Review Board for care and
treatment. The period of jurisdiction of the board shall be equal to the
maximum sentence provided by statute for the crime for which the person
was found guilty except for insanity."

The parties focus, at least initially, on the emphasized language--and,
particularly, on the phrase "the maximum sentence provided by statute for the crime for
which the person was found guilty except for insanity." Defendant seizes on the term "the
crime" and argues that the use of the definite article demonstrates that the legislature
intended to limit the term of PSRB jurisdiction to the maximum sentence that a defendant
could have received for the most serious of the committed person's crimes--here, five
years for a Class C felony. Defendant further contends that the use of the singular
"crime," as opposed to "crimes," evinces the legislative intent not to authorize the
imposition of consecutive, or even concurrent, terms. The state counters that, when
viewed in context, the use of the term "the crime" does not purport to preclude the
imposition of consecutive terms--and, rather, that the statute has historically authorized
the imposition of consecutive PSRB terms and continues to do so.

We acknowledge at the outset that the text of the current version of the
statute, when viewed in isolation, appears to support defendant, at least insofar as it does
not affirmatively indicate that consecutive commitment terms may be imposed. However,
at the first level of the PGE analysis, we do not merely consider text; rather, we are to
consider the text in context. PGE v. Bureau of Labor and Industries, 317 Or 606, 611,
859 P2d 1143 (1993). Context includes previous versions of the statute, as well as
judicial interpretations of previous versions of a statute. Id. Context also includes related
statutes and prior enactments of those statutes. Young v. State of Oregon, 161 Or App 32,
35-36, 983 P2d 1044, rev den, 329 Or 447 (1999).

"Following the entry of a judgment pursuant to ORS 161.319, if the
court finds by a preponderance of the evidence that the person is affected by
mental disease or defect and that he presents a substantial danger to himself
or others that requires that the person be committed to a state mental
hospital designated by the Mental Health Division or conditionally released,
the court shall order him placed under the jurisdiction of the Psychiatric
Security Review Board for care and treatment. The period of jurisdiction of
the board shall be equal to the maximum sentence the court finds the person
could have received had he been found responsible."

In State v. Norman, 71 Or App 389, 692 P2d 665 (1984), rev den, 299 Or
31, cert den, 471 US 1020 (1985), we interpreted that pre-1989 "maximum sentence * * *
the person could have received" language. We concluded that "maximum sentence," as
used in ORS 161.327(1), was the maximum aggregated consecutive sentences that could
have been imposed for multiple offenses. In Norman, the defendant was committed to the
jurisdiction of PSRB for a period of 10 years based on two offenses, each of which
carried a statutory maximum sentence of five years. The trial court determined that it had
no discretion and was required to commit the defendant for the 10-year period, even
though it would not have been required to impose consecutive sentences for those crimes.
Id. at 391. We affirmed, noting that, at the time the defendant's crimes had occurred,
courts had inherent powers to make sentences consecutive or concurrent to one another.
Id. at 392-93. We reasoned that, because a court, in exercising that inherent authority,
could have imposed consecutive sentences, the "maximum sentence" that the defendant
"could have received" was the total consecutive amount of 10 years. Id.; see also
Strecker, 154 Or App at 133 (reaching a similar conclusion in the context of a challenge
to a PSRB administrative rule).

In 1989, the legislature amended the key language of ORS 161.327(1) as
follows:

"The period of jurisdiction of the board shall be equal to the maximum
sentence [the court finds the person could have received had the person
been found guilty not subject to exception] provided by statute for the
crime for which the person was found guilty exceptfor insanity."

Or Laws 1989, ch 790, § 48. The bracketed and italicized language was removed from
the statute and replaced by the boldface language.

The 1989 amendment was enacted as part of omnibus legislation, Oregon
Laws 1989, chapter 790, designed to implement the newly created state sentencing
guidelines. See generally State v. Ferman-Velasco

Thus, there is no suggestion from the contextual backdrop of the 1989
amendment that the legislature intended to fundamentally alter Oregon's long-established
policy of ensuring that persons found to be "guilty but insane" would be potentially
subject to the longest possible period of supervision. Nor is there any suggestion that the
1989 legislature intended to alter the operation of PSRB's jurisdiction so that a person
found guilty of multiple offenses except for insanity would, necessarily, be subject to
PSRB's jurisdiction for less time than if he or she had been convicted and criminally
sentenced for the same crimes. There is, in sum, no suggestion that the legislature
intended to repeal the authorization for imposition of consecutive PSRB terms, as
sustained in Norman. See generally State v. Waterhouse, 209 Or 424, 426, 307 P2d 327
(1957) (noting maxim of statutory construction that the legislature acted with knowledge
"of such existing judicial decisions as have a direct bearing" on an issue).

Defendant does not seriously contend otherwise. Rather, defendant asserts
that the operative language--"the crime"--is so clear as to be susceptible to only one
plausible construction, even when viewed in the context of the statute's evolution and the
1989 amendment's enactment. Defendant's argument is, essentially, "That may not be
what the legislature intended, but it is what they said." Accord Young, 161 Or App at 37-38 (applying PGE methodology).

We disagree. The text of ORS 161.327(1), when read in context with the
remaining statutes pertaining to the insanity defense and in context with prior versions of
those statutes and case law interpreting them, is ambiguous as to the proper determination
of the total term of PSRB commitment. That is so for several reasons.

First, the use of the term "maximum sentence * * * for the crime" does not
necessarily, as defendant posits, mean either that PSRB jurisdiction may only be
established for one crime or that, if PSRB jurisdiction is established based on multiple
crimes, the total PSRB commitment term must be determined by reference to only one of
those crimes. Rather, that language does not explicitly address circumstances involving
multiple crimes. Thus, far from precluding the imposition of consecutive PSRB terms,
the statute might, plausibly, either simply not address the propriety of imposing
consecutive terms--or, given the statute's evolution and the context of the 1989
amendment, implicitly confirm and continue preexisting authority.

Second, while defendant's position is necessarily premised on the statute's
use of the definite singular--"the crime"--it is equally apparent that, if the statute instead
read "crimes," defendant's construction would fail. Indeed, if ORS 161.327(1) read "the
maximum sentence provided by statute for the crimes for which the person was found
guilty," it would be substantively indistinguishable from the pre-1989 version.
(Underscore added.) In that regard, we note that ORS 174.127(1) states that, in
construing Oregon statutes, "[t]he singular number may include the plural and the plural
number, the singular." Although that principle is obviously qualified ("may"), it is at least
arguably apposite here, where there is no contextual suggestion that the legislature, in
using the singular "crime," intended to effectively repeal the existing statutory
authorization. That, in turn, renders "maximum sentence * * * for the crime" ambiguous.

The "text-in-context" inquiry is inconclusive. Consequently, we turn to the
legislative history. PGE, 317 Or at 611.

As noted above, the amendment to ORS 161.327(1) was part of omnibus
legislation designed to implement the sentencing guidelines, which changed felony
sentencing in Oregon, for the most part, from an indeterminate system to a determinate
system. Or Laws 1989, ch 790. The legislative history demonstrates that the change in
ORS 161.327(1) was meant to make it clear that the length of PSRB jurisdiction was to
be measured by the statutory indeterminate maximum sentence rather than by the
guidelines presumptive sentence. Tape Recording, Senate Judiciary Committee, SB 1073,
Apr 3, 1989, Tape 91, Side B (statement of Bob Durston, Criminal Justice Council). The
change to ORS 161.327(1) was not intended to change "the terms of the Psychiatric
Security Review Board's custody because of the guidelines." Tape Recording, Senate
Judiciary Committee, SB 1073, June 6, 1989, Tape 221, Side B (statement of Kathleen
Bogan, Criminal Justice Council).

The legislative history thus discloses that, when the legislature changed the
wording of ORS 161.327(1) in 1989, it did not intend to change how the maximum PSRB
commitment term was to be calculated. Rather, the 1989 amendment was intended to
preserve the status quo and ensure that the implementation of the sentencing guidelines
did not alter how the commitment term was to be calculated. In light of the legislative
history, we conclude that the legislature did not intend to legislatively overrule our
holding in Norman concerning consecutive commitments to PSRB's jurisdiction. ORS
161.327(1) continues to authorize the imposition of consecutive PSRB terms.

We note, finally, that even if the legislative history were not conclusive, we
would reach the same result were we to proceed to the third level of statutory construction
and apply general maxims of construction. See PGE, 317 Or at 612. We would
particularly invoke and apply the maxim that we are to "attempt to determine how the
legislature would have intended the statute to be applied had it considered the issue." Id.

In that regard, we note that a PSRB commitment under ORS 161.327(1)
must be based on a factual finding that a person is affected by a mental disease or defect
and "presents a substantial danger to others requiring commitment." At any time after
that initial determination, if a court or PSRB determines that the person no longer
presents a substantial danger to others, the person will be discharged. ORS 161.329; ORS
161.341. Thus, in applying the maxim of construction, we would ask: If the 1989
legislature had considered the matter, would it have intended its amendment to ORS
161.327(1) to dramatically reduce the maximum possible commitment terms of
individuals who have successfully asserted an insanity defense as to multiple crimes and
who continue to present a substantial danger to others? We have no doubt as to the
answer.

Before proceeding to defendant's second assignment of error, which
challenges the trial court's failure to make findings under ORS 137.123 supporting the
imposition of consecutive PSRB terms, we address an intermediate argument that
defendant advances--viz., that Norman is no longer good law. Our response, in turn,
informs our disposition of the second assignment.

As noted above, the trial court in this case declined to make findings
pursuant to ORS 137.123 because it concluded that ORS 161.327 did not require such
findings. The court erred in that regard: ORS 161.327 requires the court to fix the length
of PSRB's jurisdiction by reference to the maximum sentence that a defendant could have
received if he or she had been criminally sentenced. That, in turn, requires the court to
determine if the defendant could have received consecutive sentences under the standards
prescribed in ORS 137.123.

Thus, to determine the total maximum sentence that can be imposed for
multiple offenses for which a person is found guilty except for insanity, the court must
first determine if the offenses arose "from the same continuous and uninterrupted course
of conduct." ORS 137.123(2), (4). If not, then the maximum possible sentences would
be consecutive to one another, ORS 137.123(2), and consecutive PSRB commitment
terms must be imposed. If, however, some or all of the offenses arose from a "continuous
and uninterrupted course of conduct," then the maximum sentences for those crimes can
be imposed consecutively to one another only if the court makes findings pursuant to
ORS 137.123(5). If the court is able to make the factual findings necessary under ORS
137.123(5)(a) or (b) with respect to some or all of the offenses, then the PSRB
commitment terms for those offenses must be made consecutive. If, however, the court
finds that the factual predicates for consecutive sentences under ORS 137.123(5)(a) or (b)
are not present, then the PSRB commitment terms stemming from those offenses arising
out of a continuous and uninterrupted course of conduct must be concurrent.

Defendant suggests that the trial court's failure to make the necessary
findings requires a remand. The state suggests that, regardless of the lack of findings, the
trial court, on this record, could have made the necessary findings under ORS 137.123 in
support of consecutive sentences--and, thus, the trial court's judgment imposing
consecutive commitment terms should be affirmed.

We reject the state's suggestion. ORS 137.123 contemplates findings made
at the trial court level, not findings by an appellate court. This court does not engage in
independent fact finding; nor do we second-guess what a factfinder might have done but
did not do. When we encounter problems with factual findings in the context of
sentencing, we remand. See, e.g., State v. Racicot, 106 Or App 557, 561, 809 P2d 726
(1991) (making necessary determinations under ORS 137.123(5)(a) and (b) "may require
the trial court to choose from competing versions of the facts or to make a qualitative
judgment about the relative seriousness of facts or circumstances involved in the
commission of a crime" and cannot be done de novo on appellate review). We thus
conclude that the trial court's failure to make findings necessary to impose consecutive
PSRB commitment terms requires a remand.

Vacated and remanded for findings as to whether, under ORS 137.123, trial
court could have imposed consecutive sentences for offenses for which defendant was
found guilty except for insanity, and for redetermination of the length of defendant's
PSRB commitment pursuant to ORS 161.327 in the light of those findings.

1. The sixth count of unlawful use of a weapon simply stated an alternative
theory for the same act alleged in another count. The state acknowledged that those two
counts should merge.

"Following the entry of a judgment pursuant to ORS 161.319 and the
dispositional determination under ORS 161.325, if the court finds that the
person is no longer affected by mental disease or defect, or, if so affected,
no longer presents a substantial danger to others and is not in need of care,
supervision or treatment, the court shall order the person discharged from
custody."

3. Under ORS 161.326(1), a party who commits a new crime while under
PSRB's jurisdiction may be subject to a further term of commitment. In that
circumstance, PSRB is to make the findings described in ORS 161.325(2). ORS
161.325(2), in turn, requires a determination of "the offense of which the person
otherwise would have been convicted" and findings as to the identity of any victims and
whether any victim wishes to receive notification pertaining to defendant's status.

4. In Strecker, the petitioner successfully asserted an insanity defense
concerning crimes arising out of the same criminal episode and was committed to the
state mental hospital for an indeterminate period of time before the creation of PSRB.
154 Or App at 132. The act that created PSRB gave it jurisdiction over people who had
been committed to state mental hospitals under circumstances such as those of the
petitioner. PSRB then promulgated a rule concerning the length of commitment for those
committed to its jurisdiction for crimes committed before PSRB's creation, that stated in
pertinent part: "The period of jurisdiction in these cases shall be equal to the maximum
sentence the person could have received if found guilty and shall be measured from the
date of judgment." Id. at 133, quoting OAR 859-30-010(3). Under that rule, PSRB
determined that the petitioner could have received a maximum term of imprisonment of
40 years for the rape and sodomy offenses because those offenses could have been
sentenced consecutively. On review, we rejected the petitioner's argument that PSRB
could not make the determination that sentences could have been consecutive. Id. at 134.

5. In 1987, the pertinent language read, "The period of jurisdiction of the
board shall be equal to the maximum sentence the court finds the person could have
received had the person been found guilty not subject to exception for insanity." ORS
161.327(1) (1987).

"(2) If a defendant is simultaneously sentenced for criminal offenses
that do not arise from the same continuous and uninterrupted course of
conduct * * * the court may impose a sentence concurrent with or
consecutive to the other sentence or sentences.

"* * * * *

"(5) The court has discretion to impose consecutive terms of
imprisonment for separate convictions arising out of a continuous and
uninterrupted course of conduct only if the court finds:

"(a) That the criminal offense for which a consecutive sentence is
contemplated was not merely an incidental violation of a separate statutory
provision in the course of the commission of a more serious crime but
rather was an indication of defendant's willingness to commit more than one
criminal offense; or

"(b) The criminal offense for which a consecutive sentence is
contemplated caused or created a risk of causing greater or qualitatively
different loss, injury or harm to the victim or caused or created a risk of
causing loss, injury, or harm to a different victim than was caused or
threatened by the other offense or offenses committed during a continuous
and uninterrupted course o[f] conduct."

7. We emphasize, however, that nothing in the intervening changes in the law
called into question Norman's substantive holding--that the total duration of PSRB
commitment is to be determined based on the length of consecutive sentences that could
have been imposed.